Citation NR: 9629530
Decision Date: 10/21/96 Archive Date: 10/30/96
DOCKET NO. 94-36 483 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to service connection for blindness as secondary
to service-connected post traumatic stress disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Ronald R. Bosch, Counsel
INTRODUCTION
The veteran served on active duty from August 1942 to
September 1945.
This appeal arose from a November 1992 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio. The RO, in pertinent part, granted
entitlement to service connection for post traumatic stress
disorder with assignment of a 30 percent evaluation, and
denied entitlement to service connection for blindness as
secondary to service-connected post traumatic stress
disorder.
In a June 1994 rating decision the RO granted entitlement to
an increased evaluation of 100 percent for post traumatic
stress disorder and affirmed the denial of entitlement to
service connection for blindness as secondary to service-
connected post traumatic stress disorder.
The RO affirmed the denial of entitlement to service
connection for blindness as secondary to service-connected
post traumatic stress disorder when it issued rating
decisions in November 1994 and July 1995.
The case has been forwarded to the Board of Veterans’ Appeals
(Board) for appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that during the 1970’s he suffered from
significant depression due to his post traumatic stress
disorder. Because of his depression he did not eat and
developed malnutrition. The appellant argues that his
malnutrition caused him to go blind. The claimant therefore
avers that his bilateral blindness cannot satisfactorily be
dissociated from his service-connected post traumatic stress
disorder.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the claim for service
connection for blindness as secondary to service-connected
post traumatic stress disorder is not well grounded.
FINDING OF FACT
The claim for service connection for blindness as secondary
to service-connected post traumatic stress disorder is not
supported by cognizable evidence showing that the claim is
plausible or capable of substantiation.
CONCLUSION OF LAW
The claim for service connection for blindness as secondary
to service-connected post traumatic stress disorder is not
well grounded. 38 U.S.C.A. § 5107 (West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
The claims file contains records of inpatient and outpatient
treatment of the appellant for variously diagnosed bilateral
eye symptomatology including retinal detachment dated from
the late 1970’s to the 1990’s.
A May 1992 VA special ophthalmology examination concluded in
pertinent diagnoses of legally blind in the right eye,
central choroidal sclerosis in the right eye, totally bind in
the left eye, complicata cataract in the left eye, and status
post retinal detachment of the left eye with retinal
degeneration.
The veteran provided testimony in support of his claim for
service connection for blindness as secondary to his service-
connected post traumatic stress disorder at an RO hearing
held in November 1993.
Analysis
Section 5107 of Title 38, United States Code unequivocally
places an initial burden upon the claimant to produce
evidence that his claim is well grounded; that is, that his
claim is plausible. See Grivois v. Brown, 6 Vet.App. 136,
139 (1994); see Grottveit v. Brown, 5 Vet.App. 91, 92 (1993).
Because the veteran has failed to meet this burden, the Board
finds that his claim for service connection for blindness as
secondary to service-connected post traumatic stress disorder
is not well grounded and should be denied.
Service connection may be granted for a disorder which is
proximately due to or the result of a service-connected
disability. 38 C.F.R. § 3.310(a) (1995).
In Allen v. Brown, 7 Vet.App. 439 (1995), the United States
Court of Veterans Appeals (Court) held that the term
“disability,” as used in 38 U.S.C.A. § 1110 (West 1991),
refers to impairment of earning capacity and that such
definition mandates that any additional impairment of earning
capacity resulting from an already service-connected
disability, regardless of whether or not the additional
impairment is itself a separate disease or injury caused by
the service-connected disability, shall be compensated.
Thus, pursuant to 38 U.S.C.A. § 1110 and 38 C.F.R.
§ 3.310(a), when aggravation of a veteran’s non-service-
connected disorder is proximately due to or the result of a
service-connected disability, such veteran shall be
compensated for the degree of disability, but only that
degree over and above the degree of disability existing prior
to the aggravation. 38 C.F.R. § 3.322 (1994).
Where the determinative issue involves causation or a medical
diagnosis, competent medical evidence to the effect that the
claim is possible or plausible is required. See Murphy v.
Derwinski, 1 Vet.App. 78, 81 (1990). The claimant does not
meet this burden by merely presenting his lay opinion because
he is not a medical health professional and does not
constitute competent medical authority. See Espiritu v.
Derwinski, 2 Vet.App. 492 (1992). Consequently, his lay
assertions cannot constitute cognizable evidence, and as
cognizable evidence is necessary for a well grounded claim,
see Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992), the
absence of cognizable evidence renders a veteran’s claim not
well grounded.
Turning to the veteran’s claim for service connection for
blindness as secondary to service-connected post traumatic
stress disorder, the Board notes that, despite the veteran’s
contentions to the contrary, there is no competent medical
evidence of record linking his blindness to his service-
connected post traumatic stress disorder. In other words,
the veteran’s claim is predicated on his own lay opinion.
As it is the province of trained health care providers to
enter conclusions which require medical opinions as to
causation, see Grivois, the veteran’s lay opinion is an
insufficient basis to find this claim well grounded. See
Espiritu. Accordingly, as a well grounded claim must be
supported by competent medical evidence, not merely
allegations, see Tirpak, the veteran’s claim for service
connection for blindness as secondary to his service-
connected post traumatic stress disorder must be denied as
not well grounded.
The Board notes that it is not contended nor is it otherwise
shown by the medical evidence of record that the appellant’s
service-connected post traumatic stress disorder aggravates
or causes to worsen non-service-connected blindness. See
Allen.
In reaching this determination, the Board recognizes that
this issue is being disposed of in a manner that differs from
that used by the RO. The Board has therefore considered
whether the veteran has been given adequate notice to
respond, and if not, whether he has been prejudiced thereby.
See Bernard v. Brown, 4 Vet.App. 384, 394 (1993).
In light of the veteran’s failure to meet his initial burden
in the adjudication process, the Board concludes that he has
not been prejudiced by the decision to deny his appeal. In
such a situation, the Board is not denying service connection
on the merits, but rather is finding that the veteran has
failed to meet his obligation of presenting a claim that is
plausible, or capable of substantiation, at this time.
The Board views the above discussion as sufficient to inform
the veteran of the elements necessary to complete his
application for a claim for service connection for blindness
as secondary to service-connected post traumatic stress
disorder. 38 U.S.C.A. § 5103(a) (West 1991); see Robinette
v. Brown, 8 Vet.App. at 77-8 (1995); see also Isenhart v.
Derwinski, 3 Vet.App. 177, 179-80 (1992) (VA has duty to
advise claimant of evidence required to complete
application).
ORDER
The veteran not having submitted a well grounded claim of
entitlement to service connection for blindness as secondary
to service-connected post traumatic stress disorder, the
claim is denied.
BRUCE KANNEE
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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